A recent decision of the Newfoundland and Labrador Court of Appeal has affirmed that the doctrine of proportionality is alive and well in Canadian courts and further confirms that its application is broad.
In the case of Szeto v. Dwyer 2010 NLCA 36 (CanLII), the Court of Appeal was asked to consider an interlocutory decision of a trial judge ordering answers by the plaintiffs (appellants) to certain interrogatories delivered by the defendant (respondent) in a personal injury claim. Due in part to its analysis of proportionality, the Court ultimately declined to order answers to the interrogatories.
Accepting that “the interpretation and application of a particular rule of court must be undertaken in the context of the rules as a whole and in accord with their underlying spirit and purpose,” [para 52] the court first undertook a significant review of the concepts underlying the doctrine of proportionality. The court confirmed that for rules involving discretion, in this case the rules regarding pre-trial discovery and disclosure, this includes an “application of an underlying principle of proportionality which means taking account of the appropriateness of the procedure, its cost and impact on the litigation, and its timeliness, given the nature and complexity of the litigation.” [para 53]
Although the Newfoundland and Labrador rules of court do not expressly include the doctrine of proportionality (in contrast with most of the other jurisdictions in Canada), the court confirmed that this principle is nevertheless derivable from the underlying purpose and structure of the rules and the approach to their application in the case law interpreting them. It held that the following general principles and concepts are relevant:
1. The fundamental purpose of the rules of court is to ensure an expeditious and cost effective determination of the merits of each case that is fair to all sides;
2. The rules cannot be interpreted selectively and in isolation but must be read in conjunction with the rules as a whole;
3. The rules involving discovery and disclosure by their nature are inherently flexible in their operation and application. They are not intended to have invariable application in every case regardless of circumstance or to dictate a specific result in a particular case;
4. The decisions made on procedural matters involving the exercise of discretion require a balancing of the interests of each party against the interests of the others with a view to achieving a result that is fair to all sides.
5. Individual rules respecting disclosure and discovery have built within them the idea that their invocation may not always be appropriate in particular circumstances. The principle of proportionality underlies the interpretation and application of these rules. The court must always consider and take account of proportionality, in the sense of the appropriateness of the procedure, its cost and impact on the litigation and its timeliness, in the context of the nature and complexity of the litigation. [para 55]
The court concluded that the principle of proportionality applies not only to the parties, but to the court exercising a discretion under the rules. In its decision, the court emphasized that the principle of proportionality has general application to rules involving discretion. It went on to caution that “a party invoking a rule, taking a position or making an application that is ultimately determined to be not in accordance with the proportionality principle should anticipate that there may be adverse costs consequences”. [para 54]
This case then stands for the proposition that parties and their counsel must proceed with the doctrine of proportionality in mind. More significantly, it assists counsel with understanding how this doctrine may be applied by courts in the context of pre-trial discovery and disclosure.
Following the IQPC conference in Toronto in late June, Susan Nickle was interviewed by Julius Melnitzer for an article published in the Legal Post section of the National Post on July 7, 2010.
Titled “Records Management Key to Navigating Lawsuits”, the article explores the corporate risks of not having a well-managed records management program. This is consistent with Wortzman Nickle’s position that an enforced, defensible records retention policy is the foundation for a streamlined, cost effective, and efficient e-discovery process.
However, it is not just litigation risks that are mitigated by such policies. Corporations who face competition complaints, regulatory investigations or audits also benefit enormously from good records management. Further, there are numerous and compelling business efficacy reasons to implement good policies, including significant increases in employee productivity and reductions in data storage costs.
In 2010, Wortzman Nickle has seen a significant increase in corporate interest regarding the drafting and implementation of records management policies and protocols. A successful records management regime requires a healthy marriage between legal and IT. We speak the languages of both domains. Please contact our firm for details regarding the essential aspects of good records management.
Litigants who are still operating under the assumption that meet and confer sessions/discovery plans are merely optional should take note. Recent case law under the new Ontario Rule 29.1.03 confirms that courts are willing and able to mandate discovery plans.
In TELUS Communications Company v. Sharp, 2010 ONSC 2878 (CanLII), Master Donald E. Short considered the scope of Rule 29.1.03, requiring that parties to an action agree to a discovery plan. The defendant in the case had failed to serve an Affidavit of Documents or to communicate with the plaintiff regarding his availability for discoveries.
Noting that the language of the applicable sub-sections is mandatory (“the parties to the action shall agree to a discovery plan”), Master Short turned to the issue of what occurs when the parties fail to make the directed agreement. He noted that while the new Rules address some of the consequences of a failure to agree on a Discovery Plan, including the ability of the court to refuse to grant any relief or costs, they do not provide specific guidance with respect to the imposition of a plan.
Expressly citing sub-Rules 1.04(1) and (2) which address the General Principle and Proportionality provisions of the Rules, and noting that where specific matters are not provided for in the rules, determination by analogy shall be utilized, Master Short concluded he had the authority to impose a Discovery Plan upon an unwilling litigant.
It is gratifying to see the courts embracing the principles of cooperation and proportionality in the discovery context. Stay tuned as the Ontario courts consider and rule upon other cases under the 2010 amendments to the Ontario Rules of Civil Procedure.
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